Marriageable age

Part II (s.10-21) deals with the marriageable age and the marriage of minors. In the original 1961 Act, marriageable age was set at 16 for females and 18 for males. However, under section 12 of the original 1961 Act a female 14 or 15 years or a male 16 or 17 years could apply to the court for permission to marry. The marriageable age was equalised in 1991 by the Sex Discrimination Amendment Act 1991,^[4] which raised the marriageable age of females to 18.

The marriage of a person aged 16 or 17 to another aged over 18 is permitted in "unusual and exceptional circumstances", which requires the consent of the younger person's parents and authorisation by a court. Prior to the 1991 changes, the "unusual and exceptional circumstances" procedures applied to a girl aged 14 or 15 (wanting to marry a male aged 18 or above) or a male aged 16 or 17 (wanting to marry a female aged 16 or above).^[5] For many years, courts have refused to accept a minor's pregnancy as a pressing consideration in deciding whether to allow an early marriage.^[6]

Void marriages

Part III entitled "void marriages" establishes the circumstances in which a marriage is void.^[7] To preserve the validity of past marriages, this part is divided into periods based on when amendments to the Act were introduced. A purported marriage is void if:

• either party is already married (bigamy,^[8] polygamy).
• the parties are in a prohibited relationship: direct descendants or siblings, including by legal adoption.
• the marriage was not solemnised by an authorised celebrant (as in Part IV, Division 2).
• there is no consent, for example due to duress, fraud, mistake as to identity, mistake as to the nature of ceremony, mental incapacity, or being below the marriageable age set out in Part II.

Solemnisation of marriages

Part IV, entitled "Solemnisation of Marriages in Australia", deals with who is authorised to be a wedding celebrant, and the procedures to be followed. It also contains a division on marriages by foreign diplomatic or consular officers.

Recognition of foreign marriages

Part VA deals with recognition of foreign marriages.

This division reflects the Act's tendency to seek to uphold the validity of marriages. Marriages will be recognised if they were valid in the country where they were performed and if the marriage would be legal under Australian law. The foreign marriage certificate is proof of marriage and such marriages need not be registered in Australia.

As a marriage must be legal under Australian law, a foreign marriage will not be recognised if, for example, a person was already married (or the overseas divorce is not recognised in Australia), a person was aged under 18 (subject to some exceptions), the persons were direct descendants or siblings, or there was duress or fraud.

Other sections

• Marriages by Foreign Diplomatic or Consular Officers (Division 3 of Part IV): there are currently no Australian diplomatic or consular officers appointed to solemnise marriages overseas under Australian law.
• Marriages of Members of the Defence Force Overseas: Part V of the Act deals with marriages of members of the Defence Force overseas.
• Legitimation of Children (Part VI): The Act legitimises children if their parents marry, including in some cases the children of foreign marriages and in certain situations the children of void marriages.
• Offences (Part VII): covers various offences including bigamy, marrying a person below the marriageable age (child marriage), and (for celebrants) solemnising a marriage where they believed there to be a legal impediment.
• Miscellaneous provisions in Part IX: covers the role of interpreters, the publication of lists of celebrants, and other matters.
• Section 111A removed the ability to seek to recover damages for breach of contract where a promise to marry (an engagement) did not lead to marriage.^[10]

Marriage education

Part IA authorises the government to make grants to approved organisations for marriage counselling.

Marriage Amendment Act 2004

Before 2004, there was no definition of marriage in the 1961 Act, and instead the common law definition used in the English case Hyde v Hyde (1866) was considered supreme.^[11] Though s.46(1) of the Act required celebrants to explain the legal nature of marriage in Australia to a couple as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life", these words were descriptive or explanatory, rather than outlining what constituted a legally valid marriage in Australia.^[12]

On 27 May 2004 the then federal attorney-general Philip Ruddock introduced the Marriage Amendment Bill 2004 to incorporate a definition of marriage into the Marriage Act 1961 and to outlaw the recognition of same-sex marriages lawfully entered into in foreign jurisdictions.^[13][14] In June 2004, the bill passed the House of Representatives. On 12 August 2004, the amendment passed the Parliament. The bill subsequently received royal assent, becoming the Marriage Amendment Act 2004.^[15][16]

The amendment incorporated a definition of marriage into section 5 of the Act, known as the Interpretation section:

marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

and inserted a new section:

88EA Certain unions are not marriages
A union solemnised in a foreign country between:
(a) a man and another man; or
(b) a woman and another woman;
must not be recognised as a marriage in Australia.^[17]

The amendment was argued by Ruddock and Liberal MPs to be necessary to protect the institution of marriage, and to ensure that the definition would be beyond legal challenge through the application of common law.^[18] Several years later, then-prime minister John Howard admitted that the government was motivated by the prospect of overseas same-sex marriages being recognised under Australian law via the judiciary.^[19] Labor Party shadow attorney-general Nicola Roxon said that the Labor Party would not oppose the amendment, arguing that the amendment did not affect the legal situation of same-sex relationships, merely putting into statute law what was already common law. Likewise minor parties Family First and the Christian Democrats supported the bill, as did the junior party in the Coalition government, the National Party.

The Australian Greens opposed the bill, calling it the "Marriage Discrimination Act". The Australian Democrats also opposed the bill. Democrats Senator Andrew Bartlett stated that the legislation devalued his marriage, and Greens Senator Bob Brown referred to John Howard and the legislation as "hateful".^[20][21][22]

Not all of Labor was in support of the bill. During the bill's second reading, Labor MP Anthony Albanese said, "what has caused offence is why the government has rushed in this legislation in what is possibly the last fortnight of parliamentary sittings. This bill is a result of 30 bigoted backbenchers who want to press buttons out there in the community."^[23]

Marriage Amendment (Definition and Religious Freedoms) Act 2017

Ahead of both the 2007 and 2010 federal elections, the Labor Party re-asserted its official opposition to amending the Act to legalise same-sex marriage, but by 2011 a clear majority of the party at the national conference succeeded in changing party policy in favour of the practice.^[24] Prime Minister Julia Gillard (opposed to same-sex marriage at the time) successfully moved for Labor Party MPs to be granted a conscience vote on same-sex marriage legislation.^[25] This, along with the Coalition's uniform opposition to same-sex marriage while in opposition, prevented two bills which would have legalised same-sex marriage in Australia from passing the House of Representatives and the Senate in September 2012.^[26][27]

The Abbott government (2013–15) initially opposed same-sex marriage, but in August 2015 resolved to put the matter to the people at a plebiscite after the 2016 federal election. This policy was retained by the Turnbull government (2015–18), though due to the refusal of the Senate to support the legislation to establish a plebiscite, the government conducted a voluntary postal survey on the matter from September to November 2017. The survey returned 61.6% 'Yes' vote in favour of same-sex marriage. The government subsequently committed to facilitating the passage of a private member's bill to amend the Act, and legalise same-sex marriage, by the end of 2017.^[28]

The bill in question, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, was introduced by Liberal Party Senator Dean Smith on 15 November 2017. The bill amends the definition of "marriage" in the Act, omitting the words "man and a woman" and replacing it with the gender-neutral "2 people".^[29][30] The bill passed the Senate by 43 votes to 12 on 29 November 2017 and passed the House of Representatives on 7 December 2017, with only four votes against.^[31][32] It was given royal assent by the governor-general, Sir Peter Cosgrove, on 8 December 2017.^[33]

The Act had the effect of amending the definition of marriage in Section 5 of the Marriage Act:

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

It also repealed Section 88EA, which banned the recognition of overseas same-sex marriages. Consequently, when the Act went into effect on 9 December 2017, such couples became automatically recognised as married under the law.^[33][34]

The original Act and the amendment also applies to Australia's external territories.